Boucher v Gayle
| Jurisdiction | Jamaica |
| Judge | Duffus, J. |
| Judgment Date | 02 December 1960 |
| Neutral Citation | JM 1960 CA 8 |
| Court | Court of Appeal (Jamaica) |
| Date | 02 December 1960 |
Court of Appeal
Cools-Lartigue, J.A.; Duffus, J.A.; Waddington, J.A.
David Coore for the appellant.
Vivian Blake, Q.C., for the respondent.
Practice and procedure - Application to set aside default judgment — New trial — Principles applicable — Discretion of judge — Construction of ss.186 and 201 of the Judicature (Resident Magistrates)
(on behalf of Waddington, J.)
This is an appeal from the decision of the resident magistrate for the parish of Manchester refusing an application by the defendant-appellant to set aside a judgment by default entered in plaint No.244 of 1954 on December 15th, 1959.
Plaint No.244 of 1954 was lodged by the respondent against the appellant on February 8th, 1954, to have ascertained and determined the boundary line between the land of the respondent at Middle Quarters in the parish of Manchester and r adjoining land of the appellant.
On March 2nd, 1954, the matter was referred by a former resident magistrate for the parish, to a surveyor, but as the surveyor's fees had not been paid the survey was not proceeded with.
On January 31st, 1956, the respondent lodged another plaint - No.127 of 1956 - against the appellant and another, for trespass in respect of the same land, alleging acts of trespass on December 26th and 31st, 1955.
On February 26th, 1956, the resident magistrate ordered the actions to be consolidated and referred both matters to a surveyor. The survey was not completed until March 11th, 1959.
On November 23rd, 1959, when the trial of the actions was about to commence, Mr.W.P.Cunningham, the solicitor for the appellant, announced that he had only been retained in respect of plaint 127 of 1956, and, from the discussion which then ensued it appeared that the appellant, who was originally represented in plaint 244 of 1954 by another solicitor, had determined the retainer of that solicitor and, when retaining Mr. Cunningham in plaint No.127 of 1956 had failed to retain him also in plaint 244 of 1954.
In view of this situation the parties consented to the separate trial of plaint 127 of 1956 and this resulted in judgment being entered for the respondent on her claim for £50 and costs. Plaint 244 of 1954 was adjourned to December 4th, 1959, for a date to be fixed for the trial. On this date, the resident magistrate decided that, as he was already fully seized of all the facts of the dispute between the parties, and, as in his opinion the question to be determined was substantially the same as the one which he had previously decided in plaint 127 of 1956, he would request another resident magistrate to try plaint 244 of 1954. The parties were told that they would be informed of the hearing.Subsequently, a letter dated December 11th, 1959, was posted by the clerk of the Courts to the appellant addressed to him at Middle Quarters, Mandeville - the address on the records - advising him that the matter had been set down for trial at Mandeville on December 15th, 1959. On that date the appellant did not appear and judgment by default was entered by the resident magistrate for the parish of St. Andrew exercising jurisdiction in Manchester, in the following terms:
“15.12.59. Ordered that the boundaries as set out in Plan Ex.1 as the outer boundaries of land owned by plaintiff is declared the outer boundaries of land owned by plaintiff. Costs against defendant to be agreed or taxed.”
On March 15th, 1960, the appellant filed an application to set aside the judgment. This application was heard by the resident magistrate on April 1st, 1960, and refused.
The resident magistrate in exercising his discretion to refuse the application was guided by and endeavoured to apply the principles laid down in Grimshaw v. Dunbar (1).He correctly stated the four matters which he ought to have considered in this case, namely:
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(1).the reason for the failure of the appellant to appear when the case was heard on December 15th, 1959;
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(2).whether there had been undue delay in making the application so as to prejudice the respondent;
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(3).whether the respondent would be prejudiced by an order for a new trial so as to render it inequitable to permit the case to be re-opened; and
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(4).whether the appellant's case was manifestly insupportable.
We deal now with the first question. In his affidavit in support of the application to set aside the judgment, the appellant stated that the plaint was set down for fixture on the return day of November 30th, 1959, and that when he attended Court on that date he was informed by the resident magistrate that he would not be taking the trial of the case and that he (the appellant) would be further informed of the date of the trial. The appellant further stated that the resident magistrate asked for his address and he told him “Pear Tree, Old England P.O.”
The appellant also stated that he heard nothing further about the case until December 18th, 1959, when he received the letter of December 11th, 1959, addressed to him by the clerk of the Courts.
In his reasons for judgment, the resident magistrate stated that November 30th, 1959, was not a civil return day in Mandeville, and on that day he was actually engaged in another Court at Frankfield. He further stated that he knew as a fact that he did not ask the appellant for his address on December 4th, 1959, the civil return day, for if he had, the clerk in attendance at the Civil Court on return days would there and then have made the necessary change on the proceedings.
In his grounds of appeal the appellant stated that the reference in his affidavit to the return day of November 30th, 1959, was an error and that the correct date should have been November 23rd, 1959, which was a trial date.
It appears to us that the resident magistrate's version of the facts is correct, as it was not until the case came up for fixture on December 4th, 1959, that the resident magistrate decided not to hear the case himself, but to get another magistrate to do so, and it would have been on that date rather than on November 23rd, 1959, that the parties would have been told that they would be informed of the date of hearing.
Whatever the real facts may have been however, the question that arises for consideration is - did the appellant in fact receive the letter of December 11th, 1959, before the date fixed for the trial, namely, December 15th, 1959? The appellant has sworn that he did not receive this letter until December 18th, 1959. There is no evidence as to whether or not the letter was sent by registered post. The Resident Magistrate's Court Rules [J.], 0. 36, r.17, requires such a letter to be sent by registered post, and, presumably, it was...
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